cotton v. costco wholesale corp. (d. kan. july 24, 2013)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

WAYNE A. COTTON, )

)

Plaintiff, )

)

v. ) Case No. 12-2731-JWL

)

COSTCO WHOLESALE CORP., )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the court upon Plaintiff Wayne A. Cotton’s Motion to Compel

Defendant to Search for and Produce Electronically Stored Information and Other Documents

and Answer Interrogatories (ECF No. 22). For the reasons stated below, the motion is granted in

part and denied in part.

Mr. Cotton brings this case against his employer, Costco, alleging that he was subjected

to illegal discrimination on the basis of race, a racially hostile work environment, and was

disciplined and removed from his position as loss control associate based on his race and in

retaliation for filing a charge of discrimination with the Equal Employment Opportunity

Commission. He asserts claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of

1964, 24 U.S.C. § 2000e, et seq.; and the Kansas Act Against Discrimination, K.S.A. § 44-1001,

et seq. Mr. Cotton has served on Costco requests for the production of documents and

electronically stored information (ESI) with metadata intact. He has also served Costco with

interrogatories. The court addresses the discovery requests and objections below.

I. Timeliness

As an initial matter, Costco urges the court to deny Mr. Cotton’s motion on the ground

that it is untimely. D. Kan. Rule 37.1(b) provides that motions to compel discovery must be filed

Case 2:12-cv-02731-JWL-KGS Document 41 Filed 07/24/13 of 15

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“within 30 days of the default or service of the response, answer, or objection that is the subject

of the motion unless the court extends the time for filing such motion for good cause.” Failure to

file a motion to compel within 30 days means “the objection to the default, response, answer, or

objection is waived.”1 D. Kan. Rule 37.1(b) generally “reflects that the triggering event is

service of the response that is the subject of the motion.”2 On April 1, 2013, Costco filed a

certificate of service stating that on April 1, defense counsel had placed in the U.S. mail Costco’s

discovery responses and objections.3 Costco argues that Mr. Cotton’s motion is untimely because

he did not file it within 30 days of April 1. But on April 1, Mr. Cotton had not been served with

Costco’s discovery responses and objections—only notice that Costco had placed the discovery

responses in the mail. For the purpose of computing time, Fed. R. Civ. P. 6(d) provides an

additional three days when service is made by mail. Therefore, Mr. Cotton’s motion to compel

was timely filed on May 3, 2013.

II. Search Terms for Employee E-mails

Request No. 1 asks that Costco produce, from the time period of January 1, 2009, to the

present, any ESI sent, received or created by Costco employees Tom Sadler, Linda Schwarz,

Megan Pace, and/or Dean Eastham that contain any of a list of sixty-four terms that Mr. Cotton

has provided.4 The list contains racially derogatory words and terms but also contains others

1 D. Kan. Rule 37.1(b).

2 Firestone v. Hawker Beechcraft Int’l Svs. Co., No. 10-1404-JWL, 2012 WL 359877, at *4 (D. Kan. Feb. 2, 2012)

(quoting Hock Foods, Inc. v. William Blair & Co., No. 09-2588-KHV, 2011 WL 884446, at *3 (D. Kan. Mar. 11,

2011)).

3 Cert. of Service, ECF No. 17.

4 Mr. Cotton originally requested this information as it pertains to Dean McPhearson. He withdraws that request

based on Costco’s assertion that it has not employed an individual by this name at the Overland Park warehouse.

Mem. in Supp. of Pl.’s Mot. to Compel Def. to Search for & Produc. ESI & Other Docs. & Answer Certain

Interrogs. at 3, ECF No. 23.


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race-neutral words such as “brother,” “cocoa,” “cornbread,” “gun,” “harassment,” “jail,”

“prison,” and “retaliate.”5 Request No. 2 seeks the same information as Request No. 1 as it

pertains to any member of human resources or Overland Park, Kansas warehouse management.

Among other objections, Costco asserts that the requests are overly broad. Both requests

are overly broad on their face in that they could conceivably encompass some information that

may arguably be relevant to this litigation but would also likely encompass much information

having nothing to do with issues in this case.6 Because the court finds that Mr. Cotton’s requests

are facially objectionable, he bears the burden of convincing the court that his discovery requests

are proper.7

Mr. Cotton explains that Mr. Sadler, Ms. Schwartz, Ms. Pace, and Mr. Eastham are

individuals who harassed Mr. Cotton. He argues that a search of their e-mail accounts may

unearth e-mails containing evidence of prejudice toward African-Americans because the list of

search terms are words that are not normally used in non-racial ways. The court disagrees with

this assessment. Moreover, a significant number of the sixty-four search terms are not

themselves racially charged. And a number of entries are duplicative. For example, Mr. Cotton

asks Costco to search for the terms “monkey boy,” “porch monkey,” and “welfare monkey”

separately, but these results would presumably be encompassed in the search results for the word

“monkey,” which he also lists. But for two search terms, “monkey” and “nigger,” Mr. Cotton has

5 Def.’s Resp. to Pl.’s First Set of Req. to Produc. at 3-4, ECF No. 23-1.

6 See Linnebur v.United Tel. Ass’n, No. 10-1379-RDR, 2011 WL 5103300, at *5 (D. Kan. Oct. 27, 2011) (finding a

request for production facially overbroad in that some responsive documents would be relevant but the bulk of

responsive information would relate to the general happenings at the defendant’s business or other matters not

involving the issues in the case).

7 Allen v. Mil-Tel, Inc., 283 F.R.D. 631, 633-64 (D. Kan. Apr. 18, 2013) (stating that if a discovery request is facially

objectionable, the party moving to compel bears the burden of demonstrating that the discovery request is not

objectionable) (citing Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of Haverstraw, Inc., 211

F.R.D. 658, 663 (D. Kan. 2003)).


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not alleged that any of Costco’s employees ever used any of the other words appearing on the list

of search terms. Further, Costco has agreed to search ESI for these two terms as to Mr. Sadler,

Mr. Schwartz, Ms. Pace, and Mr. Eastman,8 all of whom Mr. Cotton claims were managers in the

warehouse where he was employed.9

In addition to the problems with Mr. Cotton’s list of search terms, Request No. 2 is also

facially overly broad in that it encompasses the e-mail of “any member of human resources.” As

Costco explains, this request would require it to search the e-mail of employees nationwide, most

of whom have never had any contact with Mr. Cotton. Generally, in a non-class action

employment discrimination case, discovery is limited to the plaintiff’s employing unit.10

The

court sustains Costco’s overbreadth objections and denies Mr. Cotton’s motion to compel as to

Request Nos. 1 and 2 beyond the two search terms for ESI of the four warehouse employees

identified above.

III. Documents Mentioning Plaintiff and/or his Claims

Request No. 3 seeks documents reflecting statements taken or received by Costco that

mention plaintiff or his claims or allegations made in this suit. Request No. 4 seeks each

document mentioning Mr. Cotton or his allegations of discrimination, harassment, and/or

retaliation that were created or received by any current or former employee, manager or

supervisor of Mr. Cotton. Costco has agreed to produce some responsive documents but

continues to rely on its objections. Among other objections, Costco continues to assert that these

requests are overly broad because they potentially encompass any document that mentions Mr.

8 See Def.’s Resp. in Opp’n to Mot. to Compel at 5 n.1, ECF No. 27.

9 See Compl. at 5-7, ECF No. 1; Mem. in Supp. of Pl.’s Mot. to Compel Def. to Search for & Produc. ESI & Other

Docs. & Answer Certain Interrogs. at 1, ECF No. 23.

10 McBride v. Medicalodges, Inc., 250 F.R.D. 581, 585 (D. Kan. Apr. 11, 2008) (citing cases).


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Cotton’s name regardless of whether it has anything to do with this suit. The court agrees. Mr.

Cotton’s document requests are overly broad on their face because, again, while some responsive

documents may be relevant to issues in this case, the requests also likely encompass a significant

amount of information pertaining to unrelated issues. Request No. 4 specifically states it applies

to human resources employees regardless of their location. Conceivably, a staff directory

prepared by an HR employee containing Mr. Cotton’s name would be responsive to this request.

For these reasons, the court sustains Costco’s overbreadth objections. Costco shall produce the

responsive documents it has agreed to produce. It need not respond further.

IV. Costco’s Supplemental Production

Costco states that it has already provided or agreed to provide information sought by

Request Nos. 5, 6, 21, 22. In his reply brief, Mr. Cotton does not deny this is the case; rather, he

merely states that Costco has not yet produced the documents. To the extent Costco has not

supplemented its production, it is ordered to do so. The parties should have been capable of

resolving this issue without judicial intervention.

Request Nos. 7, 10, 11, 12, and 14 seek documents concerning Mr. Cotton’s work

performance at Costco, which is a relevant issue in this suit. The parties’ briefs are a bit

confusing on this point. Apparently, Costco has agreed to a supplemental production subject to

its objections. Again, in his reply brief, Mr. Cotton does not deny this is the case. He states that

Costco has not yet produced the documents. To the extent Costco has not supplemented its

production as it has agreed to do, it shall do so.

V. Documents Concerning the Factual Basis for Defendant’s Defenses and

Affirmative Defenses

Request No. 13 seeks documents providing a factual basis for Costco’s defenses in this

case. Costco states it has fully responded to this request and will seasonably supplement its


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response as it continues to litigate this case and gather information. In his reply brief, Mr. Cotton

again states he does not believe Costco has fully responded. He provides no additional details.

“Generally, when a party responding to discovery requests states that it has fully responded, the

court will not compel further responses unless the moving party has presented information that

calls into question the veracity of the responding party’s representation.”11

Mr. Cotton has not

done so here, and so the court denies his motion to compel as it pertains to Request No. 13.

VI. Information Pertaining to Other Claims of Discrimination

Request No. 16 seeks each document created, reviewed, and/or drafted during the

investigation of any claim of discrimination, harassment, and/or retaliation at the warehouse

from January 1, 2009, to the present. Similarly, Request No. 18 seeks documents in Costco’s

possession “from any charge, complaint, investigation[,] or civil action alleging discrimination,

harassment, and/or retaliation at the Warehouse filed against Defendant with any state agency or

court in the past five (5) years by any prior or current employee, manager[,] or supervisor.”

Costco has agreed to produce responsive information as it relates to race claims. It argues that

any discovery beyond race claims is overly broad. Costco points to some case law from this

district that limits discovery to types of claims similar to what the plaintiff has alleged. However,

Mr. Cotton has also asserted racial harassment and retaliation claims. If Costco has already

agreed to produce information related to race claims, the court sees no reason why Costco should

not be required to produce information pertaining to claims of racial harassment and retaliation.

But the court fails to see relevance of discovery beyond the types of claims plaintiff

asserts. Because this discovery does not appear facially relevant, Mr. Cotton bears the burden of

demonstrating relevance. Mr. Cotton states that this information would show whether Costco

11

FDIC v. McCaffree, 289 F.R.D. 331, 339 (D. Kan. Dec. 27, 2012).


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took his complaints seriously. In other words, Mr. Cotton contends that information pertaining to

other investigations would demonstrate that Costco’s investigation of his claim of discrimination

was cursory. But Mr. Cotton’s discovery requests seek information broader than documents

relating to Costco’s handling of discrimination claims. He also seeks all documents from any

charge, complaint, investigation, or civil action alleging discrimination concerning any employee

at the Overland Park warehouse. The court fails to see how the bulk of this information is

relevant for the purpose Mr. Cotton states, and the court is skeptical that documents pertaining to

other investigations of discrimination would have any bearing on issues in this case. For these

reasons, the court finds Mr. Cotton has not carried his burden to show relevance. Costco shall

produce information limited to other claims of race discrimination, racial harassment, and

retaliation. The motion to compel is otherwise denied as to Request Nos. 16 and 18.

VII. Personnel Records of Other Employees

Request No. 17 seeks the complete personnel and/or employment files of Costco

employees Tom Sadler, Linda Schwartz, Megan Pace, and Dean Eastham.12

Costco has agreed to

produce the complete personnel files of these employees subject to its objections. Among other

objections, Costco contends the discovery request is overly broad because as drafted, it

encompasses irrelevant information such as documents pertaining to pay and training. Plaintiff

has not explained how information beyond the personnel files is relevant to any issue in this

case, and this information does not appear facially relevant.13

Because of this, the court sustains

12

The request also sought the personnel file of Dean McPhearson, but Costco has stated it has not employed any

individual by this name at its Overland Park location.

13 See generally Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2012 WL 1207232, at *2 (D. Kan. Apr. 11, 2012)

(stating that recently, judges in this district had declined to compel production of entire personnel files “because

these files likely contain information collateral to issues in the case—for example, employees’ tax and benefits

information”).


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Costco’s objection. Costco need not produce documents beyond these individuals’ personnel

files, as it has agreed to do.

VIII. Mr. Cotton’s Disciplinary Record

Request No. 19 seeks, “Each document memorializing any disciplinary action, write-up

or memorandum of concern authored or received by you concerning any of the allegations in the

complaint.” Among other objections, Costco contends this request is vague and ambiguous

because Costco does not understand what is meant by “concerning any of the allegations in the

complaint.” Mr. Cotton does not offer any explanation other than to say these documents are

discoverable because they would show race discrimination. The court sustains in part Costco’s

objection. However, Costco shall produce documents regarding any disciplinary action Costco

took against Mr. Cotton, including any “write-ups” Mr. Cotton has received. Costco has not

supported its other objections, and they are overruled. Costco need not produce any other

documents responsive to this request beyond what the court has ordered.

IX. Costco’s Net Worth

Request No. 20 seeks documents establishing Costco’s net worth in 2008, 2009, 2010,

2011, and 2012, respectively. Costco objects on the ground of relevance. Generally, “the current

information of a party’s net worth or financial condition [is] relevant to the issue of punitive

damages.”14

Mr. Cotton seeks punitive damages, and because of this, Mr. Cotton contends

Costco’s net worth is relevant and discoverable. However, Mr. Cotton has not explained why he

requires more than the current information regarding Costco’s net worth, and this additional

information does not appear facially relevant. Therefore, the court sustains in part Costco’s

relevance objection.

14

McCloud v. Bd. of Geary Cnty. Comm’rs, No. 06-1002-MLB-DWB, 2008 WL 1743444, at *4 (D. Kan. Apr. 11,

2008) (emphasis supplied and internal parentheticals omitted).


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The remainder of the parties’ arguments focus on whether Mr. Cotton has sufficiently

pled his claim for punitive damages. Both parties cite McCloud v. Board of Geary County

Commissioners, an opinion from this district that stands for the proposition that current financial

information of a defendant is discoverable so long as the claim for punitive damages is not

spurious.15

The parties’ respective briefs on this point are not helpful. Both parties list the facts

Mr. Cotton has pled in support of his punitive damages claim, and both parties then make

conclusions about the sufficiency of the allegations with little explanation about how they

reached these conclusions. Fed. R. Civ. P. 26(b) defines the scope of discovery as “discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Both parties

seem to agree that Costco’s current net worth could be relevant to plaintiff’s claim of punitive

damages, and Costco has not moved to dismiss the claim for punitive damages—something

which would almost certainly involve more thorough arguments than what the parties present

here. Usually a motion to dismiss is a more appropriate vehicle to ask the court to address the

sufficiency of a pleading than is a motion to compel.

Because Mr. Cotton’s claim for punitive damages remains an issue in this case, and

because Costco has not otherwise supported any other valid objection to discovery, the court will

allow Mr. Cotton discovery relevant to his claim of punitive damages. His motion to compel is

granted in part and denied in part as to this request. Costco shall provide Mr. Cotton with

documents establishing its current net worth.

X. Mr. Cotton’s Relationships with Employees, Customers, and Vendors

15

Id. at *3 (D. Kan. Apr. 11, 2008) (citing Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-

2161-MLB-DWB, 2007 WL 950282, at *13 (D. Kan. Mar. 26, 2007); Audiotext Commun. Network, Inc. v. U.S.

Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at *3 (D. Kan. Oct. 5, 1995); Mid Continent Cabinetry, Inc. v.

George Koch Sons, Inc., 130 F.R.D. 149, 152 (D. Kan. 1990)).


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Request No. 23 seeks, “Each document (in its native format containing all metadata and

attachments) drafted or utilized in investigating Mr. Cotton and/or his personal relationships with

employees, member [sic] and/or vendors.” Costco objects that the request is ambiguous. Costco

lodges additional objections as well but fails to support them. Instead, Costco states it has no

idea what Mr. Cotton is attempting to seek. However, in its initial response to the requests,

Costco states that, “Subject to and without waving its objections, and to the extent Costco

understands this request, investigation continues.”16

The court does not find the request

particularly difficult to understand: Mr. Cotton is seeking information pertaining to any

investigation Costco may have conducted regarding Mr. Cotton’s relationship with other

employees, Costco members, or Costco vendors. Costco’s objections are overruled, and Mr.

Cotton’s motion to compel is granted with respect to this request.

XI. Text Messages and E-mails from Costco Employees

Request No. 25 seeks text messages sent or received by Costco employees Tom Sadler

and/or Linda Schwartz that mention Mr. Cotton and/or his allegations of discrimination,

harassment, and/or retaliation. From what the court understands from the parties’ briefs, Mr.

Cotton is seeking text messages sent from these individuals’ personal cell phones.17

Parties have

a right to request documents and ESI within the opposing party’s possession, custody, or

control.18

“[D]ocuments are deemed to be within the possession, custody, or control if the party

has actual possession, custody, or control or has the legal right to obtain the documents on

16

Def.’s Resp. to Pl.’s First Set of Requests to Produc. at 12, ECF No. 23-1.

17 Costco argues this request would require it to search employees’ private cell phones. See Def.’s Resp. in Opp’n to

Mot. to Compel at 14, ECF No. 27. In his reply brief, Mr. Cotton does not contest this assertion.

18 Fed. R. Civ. P. 34(a)(1).


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demand.”19

Mr. Cotton does not contend that Costco issued the cell phones to these employees,

that the employees used the cell phones for any work-related purpose, or that Costco otherwise

has any legal right to obtain employee text messages on demand. Accordingly, it appears to the

court that Costco does not likely have within its possession, custody, or control text messages

sent or received by these individuals on their personal cell phones. Mr. Cotton’s motion to

compel is denied with respect to this request.

Request No. 26, however, seeks e-mails sent or received by Mr. Sandler and/or Ms.

Schwartz that mention Mr. Cotton and/or his allegations of discrimination, retaliation, and/or

harassment. Among other objections, Costco argues this request is overly broad because it would

require the production of any e-mail that so much as mentions Mr. Cotton regardless of whether

the e-mail has anything to do with the issues in this suit. The court agrees and sustains Costco’s

overbreadth objection. Subject to its objections, Costco states it has already produced responsive

documents and will continue to supplement its production. The court finds this is sufficient.

XII. Interrogatories

In his reply brief, Mr. Cotton states that Interrogatory Nos. 3-5 are no longer in dispute.

The parties apparently reached an agreement about Interrogatory No. 11, which asks Costco to

identify training on harassment, discrimination, and/or retaliation given to employees at the

Overland Park warehouse. Costco answered the interrogatory subject to its objections and agreed

to produce documents relating to discrimination, harassment, and retaliation provided to Costco

managers and supervisors. In his reply brief, Mr. Cotton does not contest this assertion. He just

states Costco has not provided the supplemental documents. To the extent it has not already done

so, Costco shall provide the training documents to Mr. Cotton.

19

Noaimi v. Zaid, 283 F.R.D. 639, 641 (D. Kan. 2012) (emphasis omitted) (quoting Ice Corp. v. Hamilton

Sundstrand, Corp., 245 F.R.D. 513, 516-17 (D. Kan. Aug. 22, 2007)).


12

Interrogatory Nos. 12 and 13 seek information pertaining to Costco’s efforts to locate and

produce responsive ESI in this action. Costco has agreed to supplement its response to these

interrogatories once it completes its ESI production. Costco does not rely on any objections in

response to the motion to compel. Therefore, the court orders Costco to respond to this

interrogatory, without objection. Costco may supplement its answer as necessary.

Interrogatory No. 14 asks Costco to identify persons who may have knowledge of the

allegations in the Complaint and Answer. It further asks Costco to state its understanding of their

knowledge. Costco does not rely on any objections to this interrogatory. It states that it answered

the interrogatory by referring Mr. Cotton to Costco’s initial disclosures. But Fed. R. Civ. P.

26(a)(1) requires only that initial disclosures provide information that the disclosing party may

use to support its claims or defenses. The plain language of Mr. Cotton’s request is broader than

this. Because Costco’s response to Interrogatory No. 14 is insufficient, the court grants Mr.

Cotton’s motion to compel as to this interrogatory and orders Costco to amend and supplement

its answer.

Interrogatory No. 16 asks Costco to identify “each current or former employee at the

Warehouse who has filed a complaint or made an allegation of discrimination, harassment,

and/or retaliation to any manager, supervisor or human resource employee at any time from

January 1, 2009[,] to present.” In his motion to compel, Mr. Cotton suggests this information is

relevant to his claim of a racially hostile work environment.20

The court agrees. Information

about other employees who made claims of racial discrimination or racial harassment could

support Mr. Cotton’s allegation that he was subjected to a racially hostile work environment.

20

Mr. Cotton makes additional arguments about relevance in his reply brief. Arguments raised for the first time in a

reply brief are generally deemed waived. See Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1288 (10th Cir.

2003).


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In short, the court finds this information is facially relevant to Mr. Cotton’s hostile work

environment claim. Because the interrogatory seeks the identities of all workers who have lodged

complaints of discrimination, harassment, or retaliation, the court will limit the interrogatory to

complaints based on race.21

Costco also suggests this is the proper scope of the interrogatory, yet

Costco apparently failed to provide any responsive information. Generally, if only part of an

interrogatory is objectionable, the responding party must provide an answer as to the portion of

the interrogatory that is not objectionable.22

Costco’s relevance objection is sustained in part and

overruled in part. Costco shall answer the interrogatory as modified by the court.

Interrogatory No. 20 seeks the identity of “every minority who worked at Defendant’s

Warehouse from January 1, 2008[,] to present,” including those individuals’ contact information.

Plaintiff suggests this information may be relevant to his claim of a racially hostile work

environment. He states these individuals are potential fact witnesses. Costco objects on several

grounds, including overbreadth and relevance. Subject to these objections, Costco has agreed to

provide responsive information identifying minority employees at the Overland Park warehouse.

The court is unclear why Costco continues to rely on its objections in response to the motion to

compel if it has already agreed to answer the interrogatory. To the extent Costco is limiting the

interrogatory to identification of these individuals without providing contact information, or

identifying whether each person is a current or former employee or worked as a supervisor, that

is not permissible because Costco has not supported any objection for withholding this

information. The only objections Costco attempts to support are objections to providing the

21

See, e.g., McCoo v. Denny’s, Inc., 192 F.R.D. 675, 689 (D. Kan. 2000) (limiting a request for production to claims

of race discrimination because race was plaintiff’s only asserted basis for discrimination).

22 Moss v. Blue Cross and Blue Shield of Kan., Inc., 241 F.R.D. 683, 690 (D. Kan. Apr. 3, 2007).


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information it has already agreed to provide. Mr. Cotton’s motion to compel is granted with

respect to this interrogatory. Costco shall answer in full.

Interrogatory No. 21 seeks the identity of every complaint, notice, or administrative

action or investigation filed against Costco by an employee, member, manager, or supervisor

concerning discrimination, harassment, and/or retaliation during a period of January 1, 2008, to

the present. The interrogatory is overly broad on its face because it seeks a large portion of

information—information pertaining to events that happened in other locations—not relevant to

this case. Mr. Cotton does not adequately explain why nationwide discovery of these issues is

relevant to this case, and he does not make any attempt to refine the interrogatory in his reply

brief. Costco’s attempts to support its objections are also problematic. For one, Costco cites a

line of cases limiting discovery to the location where the plaintiff worked. Yet, it appears Costco

has not provided this information to Mr. Cotton. The court finds Mr. Cotton’s motion to compel

should be granted in part and denied in part as to this interrogatory. The interrogatory is limited

to the Overland Park warehouse and is limited to other claims of discrimination based on race,

racial harassment, or retaliation.

XIII. Conclusion

Mr. Cotton’s motion to compel is granted in part and denied in part for the reasons stated

above. Each of the parties shall bear their own attorney fees and costs incurred in briefing this

motion. In the future, the parties should make better efforts to confer. For one, Costco has agreed

to produce a large portion of documents at issue in the motion to compel. Costco should also

provide answers to interrogatories to the extent they are not objectionable, and Mr. Cotton should

be prepared to more fully articulate how the discovery he seeks bears on claims or defenses in

this case. Following these steps would not only save the parties the effort of briefing a motion to


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compel that is in large part moot or capable of being resolved without a court order, but it also

would aid the court in resolving discovery disputes more expeditiously by bringing to the court’s

attention only the disputes for which there is a genuine disagreement.

Accordingly,

IT IS THEREFORE ORDERED that Plaintiff Wayne A. Cotton’s Motion to Compel

Defendant to Search for and Produce Electronically Stored Information and Other Documents

and Answer Interrogatories (ECF No. 22) is granted in part and denied in part.

IT IS FURTHER ORDERED that within twenty-one (21) days from the date of this

order, Costco shall respond, without objection, to Request No. 19 (as modified by the court), 20

(as modified by the court), and 23; and Interrogatory Nos. 12-14, 16 (as modified by the court),

20, and 21 (as modified by the court).

IT IS FURTHER ORDERED that within twenty-one (21) days from the date of this

order, to the extent it has not already done so, Costco shall supplement its responses to Request

Nos. 3-4, 5-7, 10-12, 14, 16-18, 21, 22, 26 as it has agreed to do, and Costco shall also produce

the training materials it has agreed to produce related to Interrogatory No. 11.

IT IS SO ORDERED.

Dated this 24th day of July, 2013, at Topeka, Kansas.

s/ K. Gary Sebelius

K. Gary Sebelius

U.S. Magistrate Judge
